Why Can’t Lawyers Do This?

Longtime readers have suffered through my various thoughts, hangups, and neuroses about legal writing.

Prime among them is a frustration with the way lawyers confuse personal attacks with effective advocacy.

By way of example, I’m reading through the record in an appeal right now.

It has taken me less than 2 docket entries to get to douchebag bingo; the trial lawyers used up all of my naughty words (disingenuous, manipulative, end-run, pretext, eleventh-hour, etc.) on each other in under two briefs. Meanwhile, I still have dozens of docket entries to slog through.

That’s no way to write an advocacy piece. There’s nothing persuasive about that sort of writing; it’s tedious, predictable, and unprofessional. And it doesn’t work. I’m being paid to find one side of the argument persuasive, and I’m having trouble getting there.

Contrast this with the recent dustup between David Epstein and Malcolm Gladwell.

For our purposes, the details of the dispute aren’t important. Gladwell famously wrote Outliers, which helped popularize the “10,000-hour Rule”–which actually isn’t a rule, but whatever. Basically, the “rule” is the notion that it takes natural talent plus a lot of practice to become good at anything that’s hard to do, and that amount of practice averages out to be about 10,000 hours. (This is likely the reason why every good young lawyer comes to work with a pit in her stomach for the first five or six years of practice.)

Epstein wrote his own book called The Sports Gene, which pointed out that talent plays an enormous role in the equation. 10,000 hours is an average, and that some people can become really good at stuff in much less time; others may have to put in far more work.

Gladwell apparently felt that Epstein had given Outliers short-shrift by oversimplifying the 10,000-hour rule, taking it out of context, and marhsalling unconvincing counter-examples.

Even if you don’t know anything about the authors’ respective books (which are excellent), Gladwell’s argument is compelling. It is polite; he compliments Epstein’s work, calling it “fascinating” and “wonderful” (it is both). Gladwell then clearly outlines his differences with Epstein. His tone is professional and at times even funny, albeit in an appropriate and understated way.

The overall effect is quite persuasive. Gladwell’s challenges to Epstein are not personal. They are not mean. I’m not sure if I agree with them, but they make for good reading.

And how did Epstein react?

He hopped on Twitter and said “I appreciate that @Gladwell has addressed my book thoughtfully,” and shared a link to Gladwell’s piece.

That’s how it’s supposed to look when two smart people have a professional disagreement. If only more of our colleagues in the bar agreed.